As the latest edition of the The Weekly Briefing highlights, the recent lawsuit brought by the government watchdogs at Common Cause North Carolina against our state’s absurdly gerrymandered legislative maps is a very hopeful development. It’s the objective of the lawsuit to convince our federal courts to make clear, once and for all, that it’s unconstitutional to draw maps that so blatantly gerrymander for partisan advantage.
This morning, national courts expert Ian Millhiser of the Center for American Progress, weighed in on the suit and its prospects in a story entitled: “The Shocking Arrogance Behind One Of America’s Worst Gerrymanders.” After explaining how Rep. David Lewis, one of the legislature’s main redistricting point persons defended his efforts on the grounds that political gerrymandering is not unconstitutional, Millhiser concludes this way:
“He’s wrong about that. Partisan gerrymanders violate the First Amendment’s prohibition on viewpoint discrimination. They effectively give extra voting power to people who hold one viewpoint?—?in this case, the view that Republicans should govern?—?and strip power from people who hold a different viewpoint.
Yet, while the Supreme Court has never held that gerrymanders are legal, as Lewis suggests, the conservative Rehnquist and Roberts Courts refused to do anything about them, dismissing the problem of partisan gerrymandering as too difficult to solve.
Thirty years ago, in Davis v. Bandemer, the Supreme Court held that a partisan gerrymander may be struck down as unconstitutional upon proof of ‘both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.’ Yet the Court struggled to determine where to draw the line between lawful and unlawful maps.
Nearly two decades later, in Vieth v. Jubelirer, the justices seemed even more confused. Four of them called upon federal courts to simply give up on solving the problem of partisan gerrymanders. Four others splintered into a maze of dissenting opinions, altogether proposing a total of three different standards for weighing alleged gerrymanders. In the middle, Justice Anthony Kennedy threw up his hands in frustration. ‘The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper,’ Kennedy wrote. Nevertheless, he concluded that ‘if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.’
So here we are today, with the right to be free of gerrymanders more a theoretical right than a real one. Justice Kennedy sent litigators off on an Arthurian quest to find the elusive ‘workable standard’ that would allow him to separate every possible map into one of two piles marked ‘GERRYMANDER’ and ‘NOT A GERRYMANDER.’ And until this Holy Grail is found, obvious, explicit political gerrymanders like the one in North Carolina remain unmolested. Lawmakers like David Lewis appear to honestly believe that rigging elections is entirely legal.
It should be noted that at least one lawsuit, a challenge to Wisconsin’s gerrymandered state legislative maps, offers a promising solution to Kennedy’s dilemma. Common Cause, meanwhile, presents the courts with a more basic question: must any gerrymander be allowed to stand, and any amount of legislative arrogance be allowed to thrive, until someone hands Anthony Kennedy his grail?”